Bill S4003-2011

Relates to the crime of endangering the welfare of a child

Creates a new class D violent felony offense of endangering the welfare of a child in the first degree; the current offense of endangering the welfare of a child is converted to the second degree crime.

Memo

TITLE OF BILL: An act to amend the penal law, in relation to the crime of endangering the welfare of a child and to create a new crime of endangering the welfare of a child in the first degree

PURPOSE OR GENERAL IDEA OF BILL: This bill creates the new crimes of endangering the welfare of a child.

SUMMARY OF SPECIFIC PROVISIONS: Sections 1 through 6 amend Penal Law §70.02, 260.10, 260.12, and 260.15, renumber current Penal Law §260.11 as §260.12, and add a new Penal Law §260.11 to create a new class D violent felony offense of Endangering the Welfare of a Child in the First Degree. The current offense of Endangering the Welfare of a Child is converted to the second degree crime.

JUSTIFICATION: This bill creates a new class D felony offense of Endangering the Welfare of a Child in the First Degree. Endangering the Welfare of a Child applies to a wide variety of acts, ranging from leaving a young child in a car unattended to extreme physical abuse. However, under current law, only misdemeanor penalties can be imposed, regardless of the severity of the abuse. This bill would address this problem by enhancing penalties when the child abuser knowingly acts in a manner that creates a risk of serious injury or prolonged emotional impairment to a child less than 17 years of age or commits the crime of Endangering the Welfare of a Child when such person has previously been convicted of such crime or certain other crimes. The enhanced penalties would also apply when the victim of the crime is less than 11 years of age or suffers physical injury.

EFFECTIVE DATE: November 1st next succeeding the date on which it shall have become law.

Text

STATE OF NEW YORK
________________________________________________________________________
4003
2011-2012 Regular Sessions
IN SENATE
March 11, 2011
___________

Introduced by Sen. LANZA -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to the crime of endangering
the welfare of a child and to create a new crime of endangering the
welfare of a child in the first degree
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 260.10 of the penal law, as amended by chapter 447
of the laws of 2010, is amended to read as follows:
S 260.10 Endangering the welfare of a child IN THE SECOND DEGREE.
A person is guilty of endangering the welfare of a child IN THE SECOND
DEGREE when:
1. He or she knowingly acts in a manner likely to be injurious to the
physical, mental or moral welfare of a child less than seventeen years
old or directs or authorizes such child to engage in an occupation
involving a substantial risk of danger to his or her life or health; or
2. Being a parent, guardian or other person legally charged with the
care or custody of a child less than eighteen years old, he or she fails
or refuses to exercise reasonable diligence in the control of such child
to prevent him or her from becoming an "abused child," a "neglected
child," a "juvenile delinquent" or a "person in need of supervision," as
those terms are defined in articles ten, three and seven of the family
court act.
3. A person is not guilty of the provisions of this section when he or
she engages in the conduct described in subdivision one of section
260.00 of this article: (a) with the intent to wholly abandon the child
by relinquishing responsibility for and right to the care and custody of
such child; (b) with the intent that the child be safe from physical
injury and cared for in an appropriate manner; (c) the child is left
with an appropriate person, or in a suitable location and the person who

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01942-01-1

S. 4003 2

leaves the child promptly notifies an appropriate person of the child's
location; and (d) the child is not more than thirty days old.
Endangering the welfare of a child IN THE SECOND DEGREE is a class A
misdemeanor.
S 2. Section 260.11 of the penal law is renumbered section 260.12.
S 3. The penal law is amended by adding a new section 260.11 to read
as follows:
S 260.11 ENDANGERING THE WELFARE OF A CHILD IN THE FIRST DEGREE.
A PERSON IS GUILTY OF ENDANGERING THE WELFARE OF A CHILD IN THE FIRST
DEGREE WHEN:
1. HE OR SHE KNOWINGLY ACTS IN A MANNER WHICH CREATES A RISK OF EITHER
SERIOUS PHYSICAL INJURY OR PROLONGED IMPAIRMENT OF THE MENTAL OR
EMOTIONAL CONDITION OF A CHILD LESS THAN SEVENTEEN YEARS OLD; OR
2. HE OR SHE COMMITS THE OFFENSE OF ENDANGERING THE WELFARE OF A CHILD
IN THE SECOND DEGREE, WHEN:
(A) THE CHILD IS LESS THAN ELEVEN YEARS OLD; OR
(B) THE CHILD SUFFERED PHYSICAL INJURY; OR
(C) HE OR SHE HAS PREVIOUSLY BEEN CONVICTED OF ANY OF THE FOLLOWING
OFFENSES: ENDANGERING THE WELFARE OF A CHILD IN THE SECOND DEGREE AS
DEFINED IN SECTION 260.10; ENDANGERING THE WELFARE OF A CHILD IN THE
FIRST DEGREE AS DEFINED IN THIS SECTION; ABANDONMENT OF A CHILD AS
DEFINED IN SECTION 260.00; ASSAULT IN THE SECOND DEGREE AS DEFINED IN
SUBDIVISION EIGHT OR NINE OF SECTION 120.05; AGGRAVATED ASSAULT UPON A
PERSON LESS THAN ELEVEN YEARS OLD AS DEFINED IN SECTION 120.12;
MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION FOUR OF
SECTION 125.20; MURDER IN THE SECOND DEGREE AS DEFINED IN SUBDIVISION
FOUR OF SECTION 125.25; RAPE IN THE THIRD DEGREE AS DEFINED IN SUBDIVI-
SION TWO OF SECTION 130.25; RAPE IN THE SECOND DEGREE AS DEFINED IN
SECTION 130.30; RAPE IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION THREE
OF SECTION 130.35; CRIMINAL SEXUAL ACT IN THE THIRD DEGREE AS DEFINED IN
SUBDIVISION TWO OF SECTION 130.40; CRIMINAL SEXUAL ACT IN THE SECOND
DEGREE AS DEFINED IN SECTION 130.45; CRIMINAL SEXUAL ACT IN THE FIRST
DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 130.50; SEXUAL ABUSE
IN THE SECOND DEGREE AS DEFINED IN SUBDIVISION TWO OF SECTION 130.60;
SEXUAL ABUSE IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION THREE OF
SECTION 130.65; AGGRAVATED SEXUAL ABUSE IN THE THIRD DEGREE AS DEFINED
IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 130.66; AGGRAVATED SEXUAL
ABUSE IN THE SECOND DEGREE AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION
ONE OF SECTION 130.67; AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE AS
DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 130.70; COURSE OF
SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION
130.75; COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE SECOND DEGREE AS
DEFINED IN SECTION 130.80; DISSEMINATING INDECENT MATERIAL TO MINORS IN
THE SECOND DEGREE AS DEFINED IN SECTION 235.21; DISSEMINATING INDECENT
MATERIAL TO MINORS IN THE FIRST DEGREE AS DEFINED IN SECTION 235.22; USE
OF A CHILD IN A SEXUAL PERFORMANCE AS DEFINED IN SECTION 263.05; PROMOT-
ING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION
263.10; POSSESSING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD AS DEFINED
IN SECTION 263.11; PROMOTING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED
IN SECTION 263.15; POSSESSING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED
IN SECTION 263.16; OR A SIMILAR OFFENSE AGAINST A CHILD IN ANY OTHER
JURISDICTION.
ENDANGERING THE WELFARE OF A CHILD IN THE FIRST DEGREE IS A CLASS D
FELONY.

S. 4003 3

S 4. Paragraph (c) of subdivision 1 of section 70.02 of the penal law,
as amended by chapter 405 of the laws of 2010, is amended to read as
follows:
(c) Class D violent felony offenses: an attempt to commit any of the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section 120.18, stalking in the first degree, as defined in subdivision
one of section 120.60, strangulation in the second degree as defined in
section 121.12, rape in the second degree as defined in section 130.30,
criminal sexual act in the second degree as defined in section 130.45,
sexual abuse in the first degree as defined in section 130.65, course of
sexual conduct against a child in the second degree as defined in
section 130.80, aggravated sexual abuse in the third degree as defined
in section 130.66, facilitating a sex offense with a controlled
substance as defined in section 130.90, ENDANGERING THE WELFARE OF A
CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 260.11, criminal
possession of a weapon in the third degree as defined in subdivision
five, six, seven or eight of section 265.02, criminal sale of a firearm
in the third degree as defined in section 265.11, intimidating a victim
or witness in the second degree as defined in section 215.16, soliciting
or providing support for an act of terrorism in the second degree as
defined in section 490.10, and making a terroristic threat as defined in
section 490.20, falsely reporting an incident in the first degree as
defined in section 240.60, placing a false bomb or hazardous substance
in the first degree as defined in section 240.62, placing a false bomb
or hazardous substance in a sports stadium or arena, mass transportation
facility or enclosed shopping mall as defined in section 240.63, and
aggravated unpermitted use of indoor pyrotechnics in the first degree as
defined in section 405.18.
S 5. Section 260.12 of the penal law, as amended by chapter 89 of the
laws of 1984 and as renumbered by section two of this act, is amended to
read as follows:
S 260.12 Endangering the welfare of a child; corroboration.
A person shall not be convicted of endangering the welfare of a child
AS DEFINED IN SECTION 260.10 OR 260.11 OF THIS ARTICLE, or of an attempt
to commit the same, upon the testimony of a victim who is incapable of
consent because of mental defect or mental incapacity as to conduct that
constitutes an offense or an attempt to commit an offense referred to in
section 130.16, without additional evidence sufficient pursuant to
section 130.16 to sustain a conviction of an offense referred to in
section 130.16, or of an attempt to commit the same.
S 6. Section 260.15 of the penal law, as amended by chapter 447 of the
laws of 2010, is amended to read as follows:
S 260.15 Endangering the welfare of a child; defense.
In any prosecution for endangering the welfare of a child, pursuant to
section 260.10 OR 260.11 of this article, based upon an alleged failure
or refusal to provide proper medical care or treatment to an ill child,
it is an affirmative defense that the defendant (a) is a parent, guardi-
an or other person legally charged with the care or custody of such
child; and (b) is a member or adherent of an organized church or reli-
gious group the tenets of which prescribe prayer as the principal treat-
ment for illness; and (c) treated or caused such ill child to be treated
in accordance with such tenets.
S 7. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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